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New Ohio Law Limits Disclosure of Fracking Fluid Ingredients

May 30, 2012

The fight over disclosure of often-toxic ingredients added to fluids used to stimulate production of natural gas from horizontal wells opened a new round in Ohio last week. Hydraulic fracturing (fracking) of shale formations has in many states been accompanied by complaints that it is contaminating drinking water wells. In the absence of effective federal rules to deal with the issue, states are adopting their own.

The Ohio legislature cleared a fracking bill late May 24, 2012, sending it to Gov. John Kasich (R), who says he will sign it. It was hard-fought along party lines in the GOP-dominated legislature. It increases inspections of wells and requires drillers to hold liability insurance. But Reuters reports: "Many Democrats said the bill paves the way for the industry to hide information about toxic chemicals that could contaminate groundwater."

Drillers are required to file with the state data about the ingredients used in fracking fluid, but only after completion of the well, and they may withhold data on ingredients they claim as trade secrets. The claims do not need to be substantiated. Landowners and citizens not knowing the ingredients ahead of time are handicapped. They would lack information needed to oppose the drilling permit — and the bill eliminates their right to appeal the permit-granting decision afterwards. They would not be able to establish via testing the pre-drilling baseline of well-water quality if they did not know what chemicals to test for. And their ability to sue for pollution damage afterward would be made moot by not knowing some fracking fluid ingredients. They could not know whether an ingredient had made them sick if they did not know what it was.

Moreover the bill includes a provision critics call a "gag order." It requires doctors treating people possibly made sick by fracking fluids to sign confidentiality agreements.

Ohio joins other states — Arkansas, Colorado, Montana, Oklahoma, Pennsylvania, Texas and Wyoming — in adopting fracking legislation that mandates some kind of disclosure of fluid ingredients, but in most cases there are significant limits on disclosure.